Any Copyright Experts on here? Either way, what is your take?

Why would they sell the car without the art on it. Seems like a waste.

I would’t buy Andy warhol’s BMW m1 if it didn’t still have the art paint on it...

I think if you replicated it, you’d be in violation if they wouldn’t sell it to you that way.

Robb

 

It’s a shame they took the art work off. Robb hit it right on the head, the Warhol M1 would be almost worthless, so to speak. Would it be possible to get the artist to recreate?

 

You actually are asking several questions:

1) Does the original design have Copyright protection? That would depend on the artist and potentially who "owns" the design. Their are a set of guidelines the Patent and Trademark Office issue to register and protect Copyrights.

2) Why did the dealer remove the wrap? Is it because they had a contract with the artist to remove it prior to sale? That would be a likely scenario.

3) Can you recreate the wrap? Sure....if it doesn't have a copyright on it. If it does.....you need the copyright owner's permission.....simple.

4) Can you "restore" the car to its wrapped condition. Same answer as #3. You don't have any rights to the design unless they sold them to you.

 

I believe the proper term here is trademark, not copyright (I mix them up too)

I've had deep discussions with my patent / trademark attorney on this subject and it's a little complex.

I'll do my best to summarize what I understand but best to seek the advice of a qualified attorney.

Restoration falls in a very different category than copying a trademark on a new item. For example, if you were to create coffee cups and you put a Ferrari trademark logo on them, that is 100% infringement. To restore something to original, it is not. But the restoration must be of superior quality, such that the trademarked art is not diminished by a sloppy job that could hurt the brand.

We restore a few interior items that use the Ferrari name logo (trademark) and we have replicated them EXACTLY so we are only restoring to original. If we produced replacement parts with that mark we would be in violation.

Hope that helps.

 

I have a few copyrights, registered trademarks, and patents. There are a few things to consider, certain things cannot be trademarked, or copyrighted, and the process to do the artwork on that car would be something I would like to see. Imagine the about of documentation it would require to trademark that, we are not talking about the way Coke is written. Infringement cases are expensive to bring to court and usually not cut and dry (which is why most never make it to court). Then of course there is the whole issue of did you buy the car thinking the artwork came with it, if you did you can argue it belongs to you, and if they are selling it ownership goes to the buyer. I don't know exactly what deal you made so I cannot give you any real advise.

 

That reminds me of Janis Joplin’s Porsche:
https://www.ferrarichat.com/forum/threads/janis-joplin-356-for-sale.500671/

$1.76 million for the same 356, but with re-created artwork done in the 1990s.

Crazy.

Matt

 

That looks like Romero Britto art. He'll probably take your money and remake it. It seems that, if the wrap was removed, it was probably only put on there for that specific event. Think of it as licensing. You'd probably have to commission the artist to remake it. It will probably not be cheap.

By the way if that is Britto's art, his style is definitely something he's got a copyright on, and were he to find out (not sure how strong the legal team is behind the brand) I think he'd probably go after money for it. Then again if it isn't his art it's an obvious copy and they seemed to have gotten away with it.

Britto's art is considered at best kitschy, and it will probably only devalue your car further. As the option exists to have the wrap removed (unlike, for instance, the Warhol car, which is IMO a bad comparison anyway) I guess you get to take it off if you end up selling the thing in the future, but this certainly will not add value to your vehicle. Of course not everything is about money, so if it brings you happiness then that's great, I guess.

 

As I'm sure you know copyright/trademark/patent are only worth as much as you are willing to spend on lawyers defending them.

I don't have any of the above, but have been involved in various IP agreements, so similar(ish).

Be interested to see how you go.

 

Off on a tangent, but the people who know such stuff are posting so thought I would ask.

As long as you buy an item from Ferrari or their approved agent, such as a badge, an emblem, a sticker etc is it 100% your right to then attach it to whatever you like, be it a mug, a car, a fridge!? are you then allowed to resell that item with the emblem still attached? I appreciate you cannot pass the whole thing off as being totally supplied by Ferrari, just the part you purchased from them.

 

Good information.

Registration is not required although it helps. In the US, non registered trademarks are still recognized but it makes defending them a little more difficult.

 

You buy a Ferrari sticker from Ferrari and put it on a coffee mug. Your friends like it and you order a 10,000 stickers to create your own Ferrari mug and sell them on ebay. Is that legal? Nope. Even if you claim that the sticker is the only "official part", Ferrari would argue that you infringed on their licensed coffee mug business and harmed their reputation with "inferior" coffee mugs. Same thing goes for hats, shirts, clothing or virtually anything that Ferrari can/does/will make money off of.

However, it is completely legal for you to keep the sticker on your coffee mug to since it is a reasonable use.

 

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Brtto and his company (Britto Central) have registered over 200 copyrights, according to the Copyright Office online database. Copyright registration is not mandatory, and the fact he is taking the trouble to do so suggests he will be aggressive in pursuing his rights. Infringement of a registered copyright can result in an award of attorneys' fees and statutory damages, in addition to any actual damages.

The OP writes "the dealer stripped off the artwork from the vehicle before they sold it to you." That would suggest someone buying the car is not buying the artwork, only the canvas on which the artwork was originally presented. If the new owner were to then reproduce the artwork on that canvas, that would be copyright infringement, plain and simple. There is no "art restoration" defense to such infringement.

But this is all just hypothetical. This is not legal advice. Anyone contemplating something like this should hire an attorney (or just give up the idea entirely). Or, of course, you could take the money and engage Britto to recreate the artwork. If Britto would charge a great deal of money to do this, and if the new owner did not pay a great deal of money as a premium when buying the car, then this is further evidence that the new hypothetical owner only bought the canvas and not the artwork. Hypothetically.

All this is just random speculation by a random guy on a car forum. It is not legal advice in any way. Not at all. . . . .

 

I wonder. If the holder of the copyright destroys the object of the copyright, does the copyright still exist?

You can't copyright a notion, can you? If I'm thinking about a new piece of art I want to do, and make it, hate it, and destroy it, do I still own the thoughts that I had to create it?

I know very little about this, have minimal experience with TM and (C) laws. Hoping someone WITH real knowledge chimes in.

D

 

I only found 3 registered trademarks in the USPTO by either Britto Central or Romero Britto, and two were for those very names.

The third was for this unnamed design:
Image Unavailable, Please Login

In short, any work needs to be in use for it to be a registered trademark. If it's not in use (as Dave said a notion or even in prototype) it can't be registered.

If the car as designed was never sold, it also fails a marketability of the idea test. That often comes up to determine, in cases of very similar trademarks, first rights of use. It used to be first to create the mark, but it's now who first used the mark in commerce.

One could argue that re-creating the design infringes on Britto's trade dress. I could argue either side of that (to myself) successfully.

I'm not an attorney but have dealt with a lot of trademark issues in corporate life.

Personally, I'd just go for it!

Matt

 

Matt: This has nothing to do with trademarks. This is a copyright issue. As soon as any work of authorship is fixed in a tangible medium the author has a copyright in the work of authorship. A work of art is a work of authorship and the artist has a copyright in the work of art as soon as it is fixed in tangible medium (which can be oil on canvas, a photo on an SD card, or, in this case, a wrap on a car). There are exceptions, like the work made for hire doctrine, which do not seem applicable here. Registration of a copyright provides additional rights, particularly in the damages the owner can seek for infringement, but registration is not legally required. In this case, it looks like Britto is registering a number of copyrights, and may have registered his artwork on this Ferrari. I'm not going to spend the time to look through more than 200 copyright registrations to see. If you want to look yourself, go to copyright.gov, not USPTO.gov. Click on "Search Copyright Records". If you want to learn more about copyright law, there are some good resources on that site, too.

If the OP wants to design his own wrap, that is probably fine. But if he wants to recreate the original art, that is likely copyright infringement. Destroying the physical copy of the artwork does not destroy the copyright in the artwork.

As for trademark law, federal registration (with the USPTO) is permissive and often not sought. In addition to federal trademark registration there is also the potential for state trademark registration and also state common law trademark protection. Each of the doctrines is (relatively) independent. The only way to really check for the trademark rights of others is to have a search firm like Thomson Reuters conduct a full search. (Or you can try to do it yourself online.) If done properly, that should disclose not only federal trademark registration but also state registrations and potential state common law claims. At that point, you should probably have an attorney help you understand the search results. But, like I said, this particular question is a copyright issue, not a trademark issue.

It is possible, I suppose, that Britto has done so much work that is so similar that he can make a trademark or trade dress claim. But that would just be in addition to a copyright claim. One thing the three USPTO registrations you found shows is that Mr. Britto is well advised about his IP rights, which in turn suggests he is likely to be aggressive in enforcing them. Which, of course, is his right.

If the OP wants to proceed he should get a lawyer and sort through all this carefully. The damages for infringement of a registered copyright can be substantial. The facts here are potentially complicated. It would be really foolish to proceed without formal legal advice. A lawyer's legal fees up front will be cheap compared to the cost of litigating an infringement suit.

Again, this is not legal advice at all. Just a random comment by a random guy on a car forum. Not legal advice at all.

 

I apologize.

Copyrights are the most inconsistent part of US law and judicial review. I’m much more used to trademarks, because of their consistency.

Copyrights lost a lot of weight with the Campbell v. Acuff-Rose Music ruling that gave wide interpretation to parody use, but got a lot back when Marvin Gaye’s family sued (I forget his name’s) Blurred lines. That last one went way over the line, in my opinion. It’s wildly inconsistent.

But in almost every copyright case it comes down to money. And, as I said above, if Britto never sold that car, and never sold it for a premium over what the car would have brought inherently, it’s hard to claim any damages for copyright infringement.

Matt

 

It’s all intellectual property.

Matt

 

THIS

 

Matt: Great points above! And if the OP is talking about re-wrapping the car in a way that resembles Britto's work, but is different from the original wrap, then you have all the interesting issues that the cases you mention raise. And, at that point, you may also drift back into trademark and trade dress. So, that's what you would get if you were to re-wrap the car in a way that was different from the original, but close enough that everyone who saw it would say, "Wow, a new Britto Ferrari!". That would be an interesting case -- as in the old Chinese curse "may you live in interesting times." Not only would you have all the interesting issues about what constitutes "infringement" you might also then get into whether his art is so distinctive in appearance that issues of trade dress or trademark infringement start to arise if someone copies his distinctive style. Beats me. I have no idea how all that would turn out, and I suppose no one could even guess without seeing how close the new wrap is to Britto's stuff.

I thought I understood the OP to be suggesting that the new owner might re-wrap the car to be identical to the original Britto Ferrari. In that case, there would not be any interesting questions about infringement . . . . infringement would be a slam dunk. The only issue then (which you also identify correctly) would be damages. You are right, actual damages might be hard to prove, but Britto has a very active marketing program and a very active licensing program (he even has a Britto Licensing web site!), so I think he might find it easier to show substantial damages than most. He can point to what similar products have sold for, or been licensed for, and I would guess it is big money.

Your point about damages also shows the value of copyright registration. There is no legal requirement to register a copyright -- copyright springs into existence just from the act of creation and fixing the art in a tangible medium. But what registration does provide is attorney's fees and statutory damages. There is no need to prove actual damages if you have a registered copyright (although again, in Britto's case that might not be hard). When you have literal infringement of a registered copyright, the best advice when you are sued is often just to give up -- pay what the owner demands and run away. The main reason for this is the attorneys' fees clause -- if you litigate you are probably going to end up paying your lawyer and the copyright owner's lawyer when you lose (and you will lose). Britto has registered over 200 copyrights. Like I said above, I'm not going to go through them to see if this Ferrari is one of the registered copyrights!

The big thing here is, if you've got enough money to buy this Ferrari, and you've got enough money to consider having it re-wrapped, then you've got enough money to hire a real lawyer to sort out this stuff. You don't need the wizards of Ferrarichat to figure this out for you. We are pretty good at mechanical advice, and probably not so good at this.

But this has been fun to talk about! Again, my comments are just random remarks from a random guy on a car forum. They are not legal advice, not at all. Except for the "go hire a real lawyer" part -- that's good advice.